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Analysis

May should fess up: citizens’ rights are minefield

by Luke Lythgoe | 21.04.2017

Theresa May says she could provide certainty “straight away” for EU citizens living in the UK, if only EU officials agreed to reciprocal rights for UK expats. But a leaked document, laying out the European Commission’s opening Brexit bid, details many contentious issues – giving a lie to the prime minister’s claim.

Some of the Commission’s asks should be straightforward. The need for residency documents to be “issued under a simple and swift procedure” is a clear dig at the current 85-page form required for an EU national to prove permanent residency in the UK. However the Home Office, faced with 3 million new individuals to register, will probably need to simplify this process anyway.

Even setting Britain’s 2019 “withdrawal date” as the cut-off for EU citizens to move to the UK before rights stop being guaranteed should be acceptable to all but the most fervent Brexiters.

Rights in perpetuity

After this, the Commission’s asks get harder. For example, it wants citizens’ rights guaranteed in perpetuity, as “directly enforceable vested rights for the lifetime of those concerned”. This means full rights to residence and benefits. What’s more, it wants rights for a wider range of people than May might like: economically inactive persons living in the UK before Brexit as well as workers and self-employed.

Even more contentiously, the Commission suggests any “family members who accompany or join them at any point in time before/after the withdrawal date” should enjoy these rights. That means, for example, a Greek living in the UK now could marry a Brazilian in 20 years’ time, who would then have the same rights enjoyed by EU citizens here today.

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Who enforces these rights?

The Commission has also managed to entangle citizens rights with one of May’s most serious red lines – the jurisdiction of the European Court of Justice (ECJ).

The EU won’t agree a deal unless provisions to settle disputes after Brexit are in place. The document suggests that the “jurisdiction of the Court of Justice of the European Union (and the supervisory role of the Commission) should be maintained”. May will struggle to agree this without a major U-turn, especially if the ECJ becomes part of the Brexit “triple lock” in her election manifesto.

The final push

It is also worth remembering that the Commission is not the only EU institution May will need to consider. The European Council is currently drafting its own equally stringent negotiating guidelines, and EU Parliament president Antonio Tajani told The Guardian yesterday that MEPs are more than willing to veto any deal which doesn’t adequately protect citizens’ rights.

May argues that winning a general election would leave her “much freer” to get the deal she wants. It is increasingly clear that her bid for freedom only applies to domestic British politics, and that the EU will be playing hardball either way.

The prime minister has called on all parties to spell out Brexit plans during the election campaign. That should include her fessing up to the compromises she may have to agree to solve the issue of citizens’ rights.

Edited by Hugo Dixon

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